The Supreme Court’s verdict declaring NewsClick founder Prabir Purkayastha’s arrest, as well as remand, invalid is set to bring a sea change in the criminal procedures adopted by the police across the country. In the landmark judgement, the top court has made it clear that every person arrested, in connection with any offence, must be furnished with the grounds of arrest in writing and it will not be suffice to convey them orally.
A Bench of Justices B.R. Gavai and Sandeep Mehta also differentiated between the meaning of the terms ‘reasons of arrest’ and ‘grounds of arrest.’ While the former relates to general parameters on which a person had to be arrested, the latter requires the police to list out specific facts necessitating the arrest of the individual concerned so that he/she could effectively oppose the plea for remand or seek bail, they said.
Also read: Why was NewsClick founder Prabir Purkayastha’s arrest invalidated by the top Court? | Explained
The judges rejected the contention of Additional Solicitor General Suryaprakash V. Raju that Article 22(1) of the Constitution requires the police to only inform the grounds of arrest but it does not mandate that such information should be in writing. They pointed out that even Article 22(5) relating to preventive detention of an individual does not use explicitly use the term ‘written communication.’
Yet, the Supreme Court in a catena of decisions, beginning from a 1962 Constitution Bench verdict in Harikisan versus State of Maharashtra, had held that it was imperative to furnish the grounds of preventive detention in writing as well as in a language which the detainee understands. The interpretation of Article 22(5) would ipso facto apply to Article 22(1) of the Constitution too, the Bench said.
It further pointed out that Article 22(1) had already been interpreted by the Supreme Court in Pankaj Bansal versus Union of India (2023) wherein it was laid down, beyond a pale of doubt, that the grounds of arrest must be communicated in writing, and at the earliest, to a person who had been arrested.
“Resultantly, there is no doubt in the mind of the court that any person arrested for allegation of commission of offences under the provisions of UAPA [Unlawful Activities (Prevention) Act, 1967] or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest,” the Bench wrote.
Going a step further, the Bench led by Justice Gavai also held that mere filing of a chargesheet would not set at naught an illegality or unconstitutionality committed by the police at the time of arrest.
“The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody,” it said.
Insertions in judicial order
In the specific case of Mr. Purkayastha, the judges agreed with Senior Counsel Kapil Sibal that two sentences had been inserted subsequently in a judicial order passed by an Additional Sessions Judge at the Patiala House Courts in New Delhi on October 4, 2023.
Mr. Sibal had argued that the copy of the Delhi police’s remand application was served on Mr. Purkayastha’s lawyer Arshdeep Khurana, through WhtasApp, only at 7:07 am and that was after the sessions judge had passed an order at 6 am remanding the arrestee to police custody for seven days. However, subsequently, two sentences had been inserted in the remand order to give an impression as if the lawyer was heard before the passing of the order.
Concurring with his submissions, the Bench wrote: “A bare perusal of the remand order is enough to satisfy us that these two lines were subsequently inserted in the order because the script in which these two lines were written is much finer as compared to the remaining part of the order and moreover, these two lines give a clear indication of subsequent insertion.“
However, authoring the verdict for the Bench, Justice Mehta said, “It is quite possible that the learned remand judge may have heard the learned counsel for the appellant after signing the remand order and thus, these lines were inserted later without intending any harm or malintention but the fact remains that the order of remand had already been passed at 6:00 a.m. and hence, the subsequent opportunity of hearing, if any, provided to the counsel was nothing but an exercise in futility.”
